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A Power of Attorney in Northern Ireland

Power of Attorney allows you to choose someone else to deal with third parties, such as banks or the local council, on your behalf, should you be unable to do so in the future.

In Northern Ireland, the two types of Power of Attorney that are available are a General Power of Attorney (GPA) and an Enduring Power of Attorney (EPA).

General Power of Attorney (GPA)

If you want someone to look after your financial affairs for a certain period of time, you can give them a General Power of Attorney. A General Power of Attorney may be required if you:

have a physical illness

have had an accident that leads to physical injury

are going to be abroad for a long period of time.

However, a General Power of Attorney should not be used if you:

have been diagnosed with a health problem that can lead to mental incapacity

are worried that you may develop a such a health problem in due course; or

want to put in place arrangements to ensure your affairs are attended to by someone else of your choosing in the event you lose mental capacity in the future. A General Power of Attorney can’t be continued if you lose your mental capacity. Under these circumstances, it’s more appropriate to use an Enduring Power of Attorney (EPA).

Enduring Power of Attorney (EPA)

An Enduring Power of Attorney has to be set up and registered before it’s needed and while you (the 'donor') are capable of making your own decisions (have ‘mental capacity’) at the time the document is signed.

Once an EPA has been registered, it can be used at any time, including if you lose your mental capacity. An EPA can be tailored in terms of the powers granted to and restrictions placed upon your attorney(s).

The EPA can apply to all property or be restricted to certain assets, such as bank accounts only with property excluded. The attorney’s powers can be restricted, to prevent, for example, the sale of property while allowing the attorney to manage the property – for example, to organise home insurance, pay bills and accept rental income.

You can give ‘power’ to one or more people. It’s important that you choose people you can trust to act in your best interests.

When setting things up, you can stipulate which ‘powers’ you want to give; for example, you might only want your attorney to deal with your bills, but not to have the power to sell your property, or you may only want the attorney to deal with your affairs once you start to lose capacity.

You can give ‘power’ to one or more people and you are known as the 'donor'. It’s important that you choose people you can trust to act in your best interests.

If you’re appointing more than one person, you must decide if they will make decisions:

separately or together: sometimes called ‘jointly and severally’, which means attorneys can make decisions on their own or with other attorneys

together: sometimes called ‘jointly’, which means all the attorneys have to agree on the decision.

You can also choose to let them make some decisions ‘jointly’, and others ‘jointly and severally’.

Using an Enduring Power of Attorney

As soon as an Enduring Power of Attorney has been registered and the documentation received, it can be used at any time that you see fit – you and the people you have appointed as your attorneys don’t have to wait for you to lose capacity.

If you are caring for someone, it might be that you need to use it straightaway, if the person you care for is very ill. Or you might need to use it every now and then for short periods, for example while they are in hospital. On the other hand, the document might sit in a drawer for years before it’s needed, but it can be reassuring to know that the legal paperwork is in place should it ever be needed.

To use the Enduring Power of Attorney, you must show a certified copy of it (not just a photocopy) to any organisation that you want to deal with on your loved one’s behalf, including their bank.

As soon as an Enduring Power of Attorney has been registered and the documentation received, it can be used at any time that you see fit.

If you need additional certified copies at a later date, any solicitor should be able to do this for a small fee (around £5 per copy).

If your loved one lacks mental capacity

If your loved one is no longer able to make their own decisions, it’s too late to apply for an Enduring Power of Attorney. In this situation, if there is no valid Enduring Power of Attorney, you’ll need to make an application for a ‘Controllership Order’ to the Office of Care and Protection. Anyone can apply for such an order, including a partner, family member, friend or a professional, such as a solicitor, or someone from the person’s local authority social work department.

If successful, the Master of the Court can authorise the Controller to do anything that appears necessary or expedient with respect to the property and affairs of the person lacking capacity. This could be anything to do with their financial affairs including, for example:

transfer and investment of money

paying bills

the sale or purchase of property

making gifts or wills, or the carrying on of a business.

Persons appointed under such orders have to report regularly and are monitored by the appropriate authority in relation to all actions and decisions taken in respect of your property and affairs. This supervision is considered appropriate given that an individual who has lost capacity is unable to appoint a person themselves and of their own choosing to act on their behalf.